House Bill 374 and its restrictions on the citizens’ right to contest environmental permits, advances in Senate

Even before he dropped the gavel on the Senate Finance Committee meeting, Sen. Jerry Tillman, a notoriously cantankerous Republican from Randolph County, seemed to be in a particularly bad mood.

He mumbled about being angry. He barked at audience to take their seats, lest he start selling tickets. And with eight bills to plow through — he promised it would take no longer than 30 minutes — Tillman sped through the meeting as if he were herding cattle through a sale barn.

At that auctioneer’s pace, then, there was little discussion of the House Bill 374, legislation with far-reaching implications.

The 17-page bill has morphed from a benign list of technical changes into a malignant mass of pernicious environmental provisions. These include language that would weaken coal ash recycling requirements and strip many citizens of their the right to contest environmental permits.

The Senate Finance Committee, which deals with the fiscal impacts of legislation, didn’t address either section on Wednesday. The committee gave a favorable report to the bill, sending it on to the Senate Rules Committee.

The bill has several House co-sponsors, including Rep. Pat McElrath. Its Senate companion, SB 501 is co-sponsored by Sens. Trudy Wade and Andrew Brock.

The coal ash provision is controversial because an amendment to the Coal Ash Management Act required Duke Energy to dispose of its ash at three recycling facilities, where it would be repurposed for use in Portland cement.

Environmental advocates and neighbors of coal ash landfills supported that requirement because it would force Duke to remove the material, and with it, reduce the risk to public health.

But HB 374 reduces number of recycling facilities from three to two, although an early incarnation of the legislation mandated just one. Duke Energy had commissioned a report by a utility trade group that estimated the concrete industry’s demand for coal ash was low.

With low demand, fewer recycling facilities would be required. While Duke Energy has touted its support for coal ash reuse, there could be a financial incentive for leaving the ash in lined landfills and impoundments. Even with landfill liners, caps and monitoring, leaving the ash in place is cheaper than excavating millions of tons of material and shipping it to a recycling facility.

However, a NC State University study contradicts Duke’s commissioned report. NCSU found that there is actually a strong demand from the concrete industry; it could have used more than 959,000 tons in 2016. Without a sufficient domestic source, North Carolina concrete companies are importing ash from other coal-heavy countries, such as China and Turkey.

A representative from the concrete industry supported the NC State findings at an earlier committee meeting.

Katie Hicks, CWFNC

“I know communities are upset,” said Katie Hicks, associate director of Clean Water for North Carolina, which has consistently fought Duke Energy over coal ash and contaminated groundwater. “We have a big problem, and recycling the ash is a better way.”

Citizens and groups that want to contest, say, Duke Energy’s wastewater discharge permits or Enviva’s air permits, could be shut out of the complaint process, if HB 374 becomes law.

The legislation would forbid those who didn’t submit a public comment on a environment permit from later challenging it in court.

“This is a serious concern,” said Emily Zucchino, community network manager for the Dogwood Alliance, based in Asheville. “What this means for democracy and open government — it shouldn’t be restricted, but it should open the door for more public participation.”

The wood pellet company wants to build a new facility near a low-income, minority community in Hamlet. If HB 374 becomes law, citizens who didn’t officially comment on the permit — which had several clerical errors, including the facility address — would not be allowed to go to court.

The bill provision also presents problems for citizens who are unfamiliar with the public comment process and try to navigate it on their own. Finding those permits and notices on the NC Department of Environmental Quality website is difficult; translating the permit language into layperson’s terms is even more daunting.

State agencies buy legal notices in newspapers (although pending legislation would no longer require that). Yet those notices are often be buried in the classifieds section and printed in tiny type.

The SELC routinely challenges permits and submits public comments. In its analysis of the bill, the SELC said that these restrictions could violate federal rules that deal with the right to appeal EPA permits that are issued by the state.

An example of this type of permit is a NPDES — or National Pollution Discharge Elimination System. Under an NPDES, the EPA regulates facilities that discharge pollutants into certain waterways. States administer the program.

Even with the support of advocacy groups, citizens still need time to understand —- as comprehensively as Duke Energy or Enviva or Republic Services, for example — what’s at stake in the permit.

“My concern is that this sets up a mechanism that makes it harder for everyday folks to get involved,” said Hicks of Clean Water for North Carolina, which has challenged several Duke Energy discharge permits.

“It’s denying people the future opportunity to have a voice,” Zucchino said. “It’s the most basic right people should have.”

About the author

Lisa Sorg, Environmental Reporter, joined N.C. Policy Watch in July 2016. She covers environmental issues, including social justice, pollution, climate change and energy policy. Before joining the project, Lisa was the editor and an investigative reporter for INDY Week, covering the environment, housing and city government. She has been a journalist for 22 years, working at magazines, daily newspapers, digital media outlets and alternative newsweeklies.lisa@ncpolicywatch.com
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